Bombay High Court
Nandini J. Shah And Jayant P. Shah ... vs Life Insurance Corporation Of India A ... on 31 January, 2008
Equivalent citations: AIR 2008 (NOC) 1873 (BOM.) = 2008 (3) AIR BOM R 274 (DB), 2008 (3) AIR BOM R 274 2008 A I H C 2492, 2008 A I H C 2492, 2008 A I H C 2492 2008 (3) AIR BOM R 274, 2008 (3) AIR BOM R 274
Author: Swatanter Kumar
Bench: Swatanter Kumar, J.P. Devadhar
JUDGMENT Swatanter Kumar, C.J.
1. Common question of law arises for consideration in the present writ petition and other two connected writ petitions. Thus, all the three writ petitions can be disposed of by this judgment.
2. In all these cases, Life Insurance Corporation of India (hereinafter referred to as the `Corporation') claims to be the owner of the different premises wherein the petitioners in these petitions have their offices. For example, in Writ Petition No. 1278 of 2007, the petitioner has office on the third floor of East West Building, 49/55, Bombay Samachar Marg, Fort, Mumbai of which the Corporation is the owner. In this writ petition, petitioner No. 2 is a partnership firm of which petitioner No. 1 is the partner. In another writ petition being writ petition No. 1797 of 2007, National Insurance Company is the petitioner. The respondent Nos.2 to 4 in writ petition No. 1278 of 2007 are stated to be in possession of different parts of the premises and, according to the Corporation, these premises have been sublet without consent in writing or otherwise of the Corporation and as such they are in occupation of the premises unauthorisedly and are liable to be evicted, while in the other case(Writ Petition No. 1797 of 2007), the Corporation claims that the premises are needed for the bonafide use of the Corporation. In addition to these grounds, in Writ Petition No. 1797 of 2007, the ground with regard to change of user illegally and without permission of the Corporation is also taken up as a ground for the purposes of seeking eviction of the tenant/occupants.
3. In Writ Petition No. 1278 of 2007, according to the petitioners, one P.T. Shah, grand father of the petitioner No. 1 was inducted as tenant of the premises prior to 1937. He was practicing as an income tax counsel. The said P.T. Shah died intestate in 1948 and was survived by his widow and a son one Jayant P. Shah. The widow has also died subsequently and the tenancy rights in respect of the said premises completely devolved upon Jayant P. Shah who was also practicing as incometax consultant and was assisted by his wife and one R.C. Vakharia. On 6th July, 1959, Jayant P. Shah also died leaving behind him his widow, three sons and three daughters. Vide letter dated 6th July, 1959, P.T. Shah was asked by the Corporation whether he had sublet, assigned or transferred the said premises and asked him to furnish the particulars thereof. The said letter was replied by denying the averments made therein. Vide letter dated 17th September, 1968, a request was made to the Corporation to mutate the tenancy in the name of the legal heirs. Correspondence was exchanged between the parties on different aspects including renovation and for building of additional space. On 23rd December, 1995, the Corporation granted permission to Jayant P. Shah for construction of loft in the said premises by receiving the sum of Rs. 5,60,000/for that purpose. On 7th July, 2003, the deceased Jayant P. Shah received notice from the Corporation stating that he had sublet the premises to respondent Nos.2 to 4 without permission or knowledge of the Corporation and called upon the deceased to communicate within 15 days from receipt of the letter if there was any permission for that purpose. By this notice, the petitioner No. 2 was called upon to quit, vacate and surrender the peaceful possession of the said premises. The said letter is annexed at Exhibit `C' to the writ petition. This notice was also served on the respondent Nos. 2,3 and 4. The petitioner by his reply dated 21st July, 2003, informed that he had not sublet or given the premises on lease to anybody and was not liable to be evicted from the premises. One Shri S.H. Chawla from the Estate Office, A.A.O. (E.I.) Estate WZO inspected the said premises and made his inspection report dated 1st October, 2003. Vide letter dated 17th September, 2004, the petitioner No. 2 and respondent Nos.2 to 4 were informed that they had committed breach of conditions in the tenancy by subletting the premises without previous consent in writing and using the premises unauthorisedly and were in illegal possession thereof. They were, therefore, called upon to vacate the premises. By letter dated 12th October, 2004, the respondent No. 1 was informed that mother of the petitioner No. 1 did not receive any rent from petitioner No. 2 or from respondent Nos.2 to 4 and they were not liable to be evicted. Based on these notices, on 1st May, 2005, the Corporation filed cases Nos.21 and 21A of 2005 before the Estate Officer, respondent No. 5, for eviction of the petitioners and respondent Nos.2 to 4 from the premises. To the petition, a detailed reply was filed by the deceased for herself and on behalf of the petitioner No. 2 by taking various objections and by giving the historical background of the case stating reasons as to why the petition should not be allowed.
4. After her death on 19th May, 2006, her legal representative was brought on record on 9th No. vember, 2006. During the pendency of the proceedings before the Estate Officer, the petitioners filed an application dated 4th December, 2006 requesting that issues be framed and the Corporation be directed to lead evidence first. They even submitted the proposed issues. The Corporation filed reply to this application and after hearing the parties, vide its order dated 26th May, 2007, the Estate Officer rejected the application and called upon the petitioners to lead evidence at the first instance. Aggrieved by this order, the present writ petitions have been filed.
5. It may be noticed here that in all the cases, the stand taken by the petitioners is similar. They have categorically denied the ground of subletting as well as the unauthorized occupation and that the premises were needed bonafiedly by the Corporation and change of user. In all the three cases, similar applications were filed and they came to be rejected for similar reasons, however, on different dates viz. in Writ Petition No. 1797 of 2007 on 17th July, 2007, in Writ Petition No. 1068 of 2007 on 12.3.2007 and in Writ Petition No. 1278 of 2007 on 26.5.2007.
6. The reasoning given in all the three impugned orders is somewhat similar. Thus, it may be useful to refer the order of the Estate Officer impugned in Writ Petition No. 1278 of 2007. The order reads as under:
Op. Filed an application dt. 4.12.2006 through their advocate for framing the issues in the matter and also directing applicants to lead the evidence. Alongwith this application Op. Also filed the list of draft issues.
Applicants filed reply to Op's application. These applications were argued upon by the advocates from both the sides.
After going through the Op's application, applicants reply thereto and the arguments by advocates from both the sides I give my ruling as follows:
Proceedings before Estate Officer are of Summary nature. The procedure of normal litigation in civil courts is not necessary to be followed. All the provisions of CPC are not applicable to proceedings before Estate Officer. There is also no provision for framing the issues in the matter. This view is upheld by higher courts also. The only point to be decided is whether ops are in unauthorized occupation of the application premises. The Show Cause No. tice issued by Estate Officer specifically states the grounds on which order is proposed to be made. In view of this there is no necessity of framing the issues.
It is the procedure under P.P. Act that opponents have to lead the evidence first to prove their authority to occupy the application premises. The facts of the case decided by Hon'ble High Court of Bombay in Nusli Wadia v. New India Ass. Co. are different from this case before me. And therefore order dt.3.3.06 in Nusli Wadia's case by H'ble H.C. Of Bombay cannot be made applicable to this case before me.
In view of the above mentioned facts I reject application of Op. And direct them to start with leading the evidence to prove their authority to occupy the application premises.
Case adjourned to 18.6.07 at 3.30 p.m.
7. The order impugned can be dissected into two different parts. Firstly, where the Estate Officer has declined to frame issues on the ground that all provisions of Civil Procedure Code are not applicable to the proceedings before the Estate Officer and secondly, where it has been directed that the petitioners' (opposite parties) before the Estate Officer to prove their authority to occupy the premises and requiring them to start evidence in the first instance. As far as framing of the issues is concerned, the view taken by the Estate Officer would hardly call for any interference. It is true that the provisions of the Code of Civil Procedure are strictly not applicable to the proceedings before the Estate Officer and the Estate Officer is also not expected to follow the detailed procedure as contemplated under the provisions of the Code. Section 8 of the Act gives power of a Civil Court to the Estate Officer limited for the purposes which are specified in that section. The Estate Officer is expected to adopt the procedure which is in conformity with the principle of natural justice. It is not mandatory for an Estate Officer to frame issues in the strict sense of the term as contemplated under Order 14 of the Civil Procedure Code. It normally is the discretion of the Estate Officer depending on the facts and circumstances of the case. It may be appropriate to decide the matter with reference to the points in controversy. The order of the Estate Officer would not be open to question merely because he has failed to frame the issues as understood in strict legal parlance. However, it may always be appropriate for the Estate Officer and for that matter, any authority performing quasi judicial function, to formulate the points of decision and decide them in accordance with law.
8. It is essential for us to notice at this juncture that the way in which the Estate Officer has dealt with the Division Bench judgment of this Court in the case of Nusli Neville Wadia v. New India Assurance Co. Ltd. is neither appropriate nor is in consonance with the settled canons of law of precedent. The judgment of the High Court lays down the principle of law needs to be examined more carefully by the Estate Officer or any other authority to determine its applicability to the case in hand. Before any principle stated in the judgment is applied to the facts of the case, it is relevant to examine the fact of the case in which such a principle is enunciated. The relevancy of facts is not for the establishment of identical facts but relevancy of facts is primarily for application of principle of law to a subsequent case in hand. Merely by observing that, "the facts of the case decided by the High Court of Bombay are different from the case before me" is not the correct way to read and apply the judgment of the High Court. The law of precedent must be examined in its true spirit as binding precedents are not only for convenience but is a basic requirement for adhering to judicial discipline.
9. Even the facts of Nusli Wadia's case are not different to that extent that the principle of law enunciated in that case by the Division Bench of this Court could not have been brushed aside by the Estate Officer and that too, in such a casual manner. Even in Nusli Wadia's case, the ground was of bonafide requirement of the New India Assurance Co. and on that ground, eviction of tenant was sought. The tenants had taken out pleas and had sought to lead evidence but the Corporation in that case was required to lead evidence. It is expected of the authority like Estate Officer and other authorities as well as the subordinate courts to apply their mind judiciously and fairly to the precedent cited before them of the High Court and examine their applicability on the touchstone of law of precedent. It is not expected of them to brush aside the judgments of the High Courts in such a casual manner. We do hope, the authorities and the Estate Officer, in future, would keep this aspect of applicability of law in mind while deciding the cases.
10. As far as second aspect of the case requiring the petitioners to lead evidence at the first instance and to prove that they are authorized occupants is concerned, the position of law is no more res integra. In the case of Nusli Wadia (supra), Division Bench of this Court while dealing with this contingency, has held as under:
26. It should be clearly remembered that in the present case, we are not dealing with an unlawful occupant, illegal sublettee or an employee overstaying in the premises after services coming to an end, wherein the onus would be on such an occupant to lead evidence first to show that he is not an unlawful occupant, or not an illegal sublettee or that he is not overstaying in the premises. In normal cases of eviction of the above three categories under the Public Premises Eviction Act, the onus will be on the occupant to show that he is not in unlawful occupation or not an illegal sublettee or that he had not overstayed in the service quarters.
27. Under the aforesaid facts and circumstances of the case, we are clearly of the view, specially in the light of 30th May, 2002 Guidelines which are binding on respondent No. 1, that it is the respondent No. 1 who should lead the evidence first which will be subject to crossexamination by the petitioner, and thereafter the petitioner will lead the evidence in rebuttal which will be subjected to crossexamination.
11. The judgment of the Division Bench in the above case was challenged before the Supreme Court in a Special Leave Petition (c) Nos.8232 of 2006 and 10348 of 2006. The Special Leave Petition came to be dismissed in the case of New India Assurance Co. Ltd. v. Nusli Wadia and Anr. The facts of that case we have already referred and the Supreme Court after examining the Act, Rules, Guidelines as well as the applicability of concept of fairness and principle of natural justice to such proceedings, held as under:
...
29. Admittedly in these cases two notices for eviction were issued. If the contention of Mr. Lekhi is correct, the first notice was not required to be withdrawn and the second notice was not required to be issued, specifying the grounds on which the eviction of the respondents were sought for.
30. When an application for eviction is based on such grounds, which require production of positive evidence on part of the landlord, in our opinion, it would be for it to adduce evidence first; more so in a composite application where the evidence is also required to be led on the quantum of damages to be determined by the Estate Officer.
31. There may be a case where the tenant may take a defence which discloses no prima facie case in which event the Estate Officer may ask him to lead evidence. But there may be cases where the ground of eviction, having regard to the defence taken by the occupants, may be required to be gone into.
32. Appellant's stand in this case is clear and unambiguous. It intends to evict the respondents on the grounds specified in the notices issued by the Estate Officer.
33. The Estate Officer with a view to determine the lis between the parties must record summary of the evidence. Summary of the evidence and the documents shall also form part of the record of the proceedings.
34. Procedure laid down for recording evidence is stated in the Rules. The Estate Officer being a creature of the statute must comply the same. When a notice is issued, the occupant of the public premises would not only be entitled to show cause but would also be entitled to produce evidence in support of the cause shown. CONCEPT OF FAIRNESS
35. The procedural aspect as to who should lead evidence first, thus may have to be determined on the basis of the issues arising in the matter. When we say so, we do not mean that the procedure involved being a summary one, the issues are required to be specifically framed but that which is the principal issue(s) between the parties must be known to the Estate Officer.
44. If some facts are to be proved by the landlord, indisputably the occupant should get an opportunity to crossexamine.
The witness who intends to prove the said fact has the right to crossexamine the witness.
This may not be provided by under the statute, but it being a part of the principle of natural justice should be held to be indefeasible right. [See : K.L. Tripathi v. State Bank of India and Ors. and 2005(10) 634: Lakshman Exports Limited v. Collector of Central Excise]....
48. Section 5 of the Act, on a plain reading, would place the entire onus upon a noticee. It, in no uncertain terms, states that once a notice under Section 4 is issued by the Estate Officer on formation of his opinion as envisaged therein it is for the noticee not only to show cause in respect thereof but also adduce evidence and make oral submissions in support of his case. Literal meaning in a situation of this nature would lead to a conclusion that the landlord is not required to adduce any evidence at all nor it is required even to make any oral submissions. Such a literal construction would lead to an anomalous situation because the landlord may not be heard at all. It may not even be permitted to adduce any evidence in rebuttal to the one adduced by the noticee nor it would be permitted to advance any argument. Is this contemplated in law? The answer must be rendered in the negative. When a landlord files an application, it in a given situation must be able to lead evidence either at the first instance or after the evidence is led by the noticee to establish its case and/or in rebuttal to the evidence led by the noticee.
50. Except in the first category of cases, as has been noticed by us hereinbefore, Sections 4 and 5 of the Act, in our opinion, may have to be construed differently in view of the decisions rendered by this Court. If the landlord being a State within the meaning of Article 12 of the Constitution of India is required to prove fairness and reasonableness on its part in initiating a proceeding, it is for it to show how its prayer meets the constitutional requirements of Article 14 of the Constitution of India. For proper interpretation not only the basic principles of natural justice have to be borne in mind, but also principles of constitutionalism involved therein. With a view to read the provisions of the Act in a proper and effective manner, we are of the opinion that literal interpretation, if given, may give rise to an anomaly or absurdity which must be avoided. So as to enable a superior court to interpret a statute in a reasonable manner, the court must place itself in the chair of a reasonable legislator/author. So done, the rules of purposive construction have to be resorted to which would require the construction of the Act in such a manner so as to see that the object of the Act fulfilled; which in turn would lead the beneficiary under the statutory scheme to fulfill its constitutional obligations as held by the court inter alia in Ashoka Marketing Ltd. (supra).
12. The judgment of the Division Bench of this Court and its affirmation with additional grounds and principles by the Supreme Court clearly establishes that the order of the Estate Officer impugned in these writ petitions cannot stand on the scrutiny of law. Firstly, in these cases, the Corporation has to prove whether there has been any breach of conditions of lease in subletting the premises without their authority or consent and user has been changed in violation of the terms of the contract. The present cases are not one where either the petitioners have admitted that they are unauthorized occupants or it can be so construed unequivocally from the record before the Estate Officer. The parties are in dispute with regard to various features and grounds on which the eviction of the parties is claimed. Primary onus lies upon the Corporation to establish its claim by leading documentary as well as oral evidence. Of course, the onus would also lie upon the petitioners who claim that the petition should be dismissed. They will have to prove their own status in the premises in question and the fact that they have not committed any of the breaches referred to. The general rule of one who claims must prove is equally applicable to a proceeding before the Estate Officer with the exception that where unauthorized occupation is admitted or it is so undisputably evident from the record that there is no possibility of the authorized occupancy of the petitioner. The Supreme Court in the above judgment has specifically observed that the Evidence Act may not be strictly applicable but its underlying principles would apply to the proceedings before the Estate Officer. Thus, the basic concept of one who claims must to prove would be applicable within its limitation. In the cases in hand, no such irresistible finding, prima facie, can be recorded that the petitioners (tenants/occupants) are unauthorized occupants or that the subletting is established.
13. In the case of Minoo Framroze Balsara v. The Union of India and Ors. , the Division Bench of this Court clearly stated that the Estate Officer must be satisfied that public premises are in unauthorized occupation and that if a person is in unauthorized occupation then alone can Estate Officer pass order of eviction. Where unauthorized occupancy is admitted or is so undisputably evident from the record before the Estate Officer then a person of normal prudence would form undoubtedly such an opinion. It is mandatory for the Estate Officer to form his opinion on both counts. Applying this principle, it is obvious that the opinion can be formed on the basis of proper evidence before him. The basic rule of law and principles of natural justice would require that he should afford fair opportunity to the alleged unauthorized occupants not only to lead evidence but even crossexamine the witness of the Corporation. No. rmal rule would be to require the petitioners before him to start evidence at the first instance. However, there should be exception as indicated in the various judgments aforereferred by us.
14. The learned Counsel appearing for the Corporation relied upon the judgment of the Supreme court in Raymond Ltd. and Anr. v. State of Chhattisgarh and Ors. to contend that the Act is a special statute and its functioning would have to be governed and controlled by the provisions of this Act and other statute cannot be made applicable. This argument is without any substance. Firstly, on law of precedent, this judgment has no application on fact and law to the present case. Secondly, it has already been held by the Supreme Court as well as this Court that general principles of the Code of Civil Procedure and the provisions of the Evidence Act would be applicable to the proceedings before the Estate Officer and such an approach in no way would offend the provisions of the Act. The Estate Officer is required to hold summary proceedings but in the manner which is in consonance with the basic rule of law, Section 4 of the Act and Rule 5 of the Public Premises (Eviction of Unauthorised Occupants) Rules, 1971.
15. The procedural law is always intended to achieve ends of justice and not to frustrate proper determination of the controversy in issue and to provide right to defend in accordance with law. Different controversies have been raised in the present cases and it will be appropriate for the Estate Officer to deal with the case of each of the petitioner in its proper perspective. In none of these cases, petitioners before this Court have admitted that they are unauthorised occupants or that there is sufficient record before the Estate Officer which can establish with element of certainty that the petitioners are unauthorised occupants. Certain amount of onus lies upon the Corporation which it must discharge at the first instance. Obviously, thereafter onus lies upon the petitioners to show that they have neither committed breach of terms of the agreement nor are unauthorised occupants, in fact and in law. We are unable to sustain the view of the Estate Officer that a presumption can be entertained against the petitioners in regard to the unauthorised occupancy. While relying upon the various documents executed at different times in the past, the petitioners have even denied creation of unauthorised subtenancy, unauthorised occupation and change in user of the premises. In the facts and circumstances of the case, we are unable to hold that the view taken by the Estate Officer is sustainable in law.
16. In view of the reasons aforerecorded, we partly allow all these petitions and quash and set aside the orders of the Estate Officer dated 17th July, 2007 (Writ Petition No. 1797 of 2007), 12th March, 2007 (Writ Petition No. 1068 of 2007) and 26th May, 2007 (Writ Petition No. 1278 of 2007) to the extent aforementioned. The Estate Officer shall proceed in accordance with law and ensure that the Corporation commences its evidence at the first instance mainly to the limited extent of unauthorised occupation. All other questions raised by the parties in regard to the production of documents, acceptance of their relevancy etc. shall be adjudicated upon by the Estate Officer depending on the facts and circumstances of each case and in accordance with law.
17. All these petitions are disposed of in the above terms with no order as to costs. We do hope that the Estate Officer shall deal with these cases and decide them expeditiously in accordance with law.